Antepenko v. Litscher et al

Filing 10

DECISION AND ORDER signed by Judge Pamela Pepper on 9/23/2016 GRANTING 7 Plaintiff's motion to pay his initial partial filing fee with funds from his release account. (cc: all counsel; by US Mail to Plaintiff and Warden at Oshkosh CI) (pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
WILLIAM ANTEPENKO,
Plaintiff,
v.

Case No. 16-cv-1233-pp

JON E. LITSCHER, et al.,
Defendants.
______________________________________________________________________________
DECISION AND ORDER GRANTING THE PLAINTIFF’S MOTION
TO PAY HIS INITIAL PARTIAL FILING FEE WITH
FUNDS FROM HIS RELEASE ACOUNT (DKT. NO. 7)
______________________________________________________________________________
William Antepenko, a Wisconsin state prisoner who is representing
himself, filed a complaint under 42 U.S.C. §1983, alleging his civil rights were
violated. Dkt. No. 1. On September 15, 2016, U.S. Magistrate Judge David E.
Jones (the judge assigned to the case at that time) entered an order requiring
the plaintiff to pay $26.74 as an initial partial filing fee.1 Dkt. No. 5. On
September 22, 2016, the plaintiff refused to consent to jurisdiction by a
magistrate judge, so the clerk of court reassigned the case to this court. Also
on September 22, 2016, the plaintiff filed a motion asking that he be allowed to
pay the initial partial filing fee with funds from his release account. Dkt. No. 7.

As pointed out by the plaintiff, the order accidentally stated two different
initial partial filing fee amounts; on September 22, 2016, however, Judge Jones
entered an amended order clarifying that the initial partial filing fee in this
action is $26.74 (Dkt. No. 8).
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1

The Prison Litigation Reform Act (PLRA) requires the court to collect filing
fees from a “prisoner’s account.” 28 U.S.C. §1915(b). The term “prisoner’s
account” encompasses both a prisoner’s release account and general account.
Spence v. McCaughtry, 46 F. Supp. 2d 861, 862 (E.D. Wis. 1999). However,
“given the purpose of the release account to provide funds to the prisoner upon
his or her release from incarceration, the Court does not deem it prudent to
routinely focus on the release account as the initial source of funds to satisfy
the filing fee payment requirements of the PLRA.” Smith v. Huibregtse, 151 F.
Supp. 2d 1040, 1042 (E.D. Wis. 2001). Nevertheless, upon request, a court
may allow a plaintiff to pay a filing fee, or a portion thereof, out of his release
account. Doty v. Doyle, 182 F. Supp. 2d 750, 752 (E.D. Wis. 2002).
The plaintiff’s desire to pay his initial partial filing fee with funds from
his release account is clear, and he represents that his release account has
adequate funds to cover the fee. Accordingly, the court will grant the plaintiff’s
motion to pay the fee with funds in his release account.
The court ORDERS that the plaintiff’s motion to pay his initial partial
filing fee with funds from his release account (Dkt. No. 7) is GRANTED.
The court further ORDERS that the warden of Oshkosh Correctional
Institution shall withdraw $26.74 from the plaintiff’s release account and
forward that sum to the clerk of court as payment for the initial partial filing
fee in this action. The warden shall make such payment by October 17, 2016.

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The court will mail a copy of this order to the warden of Oshkosh
Correctional Institution.
Dated in Milwaukee, Wisconsin this 23rd day of September, 2016.

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